WASHINGTON-As the calendar turns over to 2004-a biennial year as defined by Congress in the Telecommunications Act of 1996-a federal appeals court will decide exactly what kind of review the Federal Communications Commission must undertake to satisfy the telecom act’s mandate.
Verizon Communications Inc. argues that the FCC must decide by the end of every even-numbered year whether every regulation is still in the public interest given the competitiveness of the market. If the commission decides that a rule is not in the public interest, it must repeal or modify the rule by the end of the year.
The FCC believes that it must determine which rules don’t make sense by the end of the year, but the FCC then must initiate a rulemaking to repeal or modify the rule.
“The statute says that once the determination is made, the commission is to apply its discretion,” said the FCC’s Richard Welch. “We need public input to make sure that we calibrate the rule appropriately.”
To further remove the FCC from the actual determination, the commission has delegated the determining role to the staff, which issues a report on whether a rule should be retained because it remains in the public interest or be repealed or modified. If a rule is found no longer to be in the public interest and thus subject to repeal or modification, but there is an ongoing proceeding that touches on it, the staff’s view can be rolled into that ongoing proceeding.
Verizon objects to this process because it believes it means the biennial review process is never finished.
“The FCC may delay the biennial review indefinitely,” said Andrew McBride, arguing on behalf of Verizon. After noting that Congress intended that telecom rules would sunset through the biennial review, “the commission has taken the expedient view that the sun shall never set,” added McBride.
Outside of the courtroom, an FCC official said that rules had been eliminated in 2002 using this process. Inside the courtroom, Welch admitted that notices of some of the rules slated to be repealed or modified are still being drafted.
Judge Merrick Garland of the U.S. Court of Appeals for the District of Columbia Circuit noted that it is now December. “We are now in December. Is that your theory that determinations could go on into the next biennial year?”
“It is not our position that we can delay this indefinitely,” replied Welch.
While the argument on Dec. 15 dealt with telecom rules, an undercurrent of the recent media-ownership debate ran through the proceeding. The FCC in June revised its media ownership rules after the D.C. Circuit said it had not fully explained its reasoning. Judge Judith Rogers, who was present at the Dec. 15 argument, wrote one of the opinions in the media-ownership saga.
Verizon’s argument is not novel. Several years ago, former FCC Commissioner Harold Furchtgott-Roth complained bitterly that the first biennial review in 1998 did not satisfy Congress’ intent that the FCC must justify each rule rather than justify getting rid of each rule. Before he was appointed to the FCC, Furchtgott-Roth was a staffer for the House of Representatives while the telecom act was being created.
